Health and Social Care Bill

Lord Harris of Haringey Excerpts

Monday 7th November 2011 Lords Chamber

We believe that creating a statutory duty of candour to provide a right for patients to know when things have gone wrong with their care and treatment is fully justified, would improve healthcare, would put the patient at the centre of health services and could, I hope, gain the support of the House. If the patient is to be central in this Bill, I can see no reason why the Minister should not accept this amendment. I beg to move.

[Lord Harris of Haringey]

My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint—for example, the death of a loved one—but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative’s case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago—the most recent case that I have come across, but I am sure there are many others—a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

“To err is human, to cover up is unforgiveable”.

That is precisely the concern that motivates this amendment.

In the White Paper Equity and excellence: Liberating the NHS, the Government said that they will require hospitals to be “open and honest” when things go wrong. That stems directly, I think, from the Liberal Democrats’ manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.

In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident—that implies that more than three-quarters of NHS trusts do not do so routinely—and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a “culture of denial”. Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.

[Lord Mawhinney]

My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, “Say nothing”. If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.

[Lord Harris of Haringey]

My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.

[Baroness Hussein-Ece]

I, too, wish that there was not a need for this duty and that it was unnecessary. However, as we have already heard from the noble Baroness, Lady Masham, and the noble Lord, Lord Harris of Haringey, there is a compelling case that now, more than ever, we need a duty of candour.

As has been said already, we know that accidents will never be eradicated, and nor will human error. We know that healthcare has risks—most people accept that—and that health professionals are only human. However, when things go wrong and they are caught up in things that can cause harm to patients, they need to be supported and helped to deal with a very difficult situation.

There has to be absolute clarity that anything less than complete openness and honesty when things go wrong is unacceptable in modern British healthcare. That is what I understand that the amendment is trying to achieve—a duty of candour.

In my previous life, I was a chief officer in a community health council. Unfortunately, I came across many cases in which a complaint was brought to me and, when we started to look into it, it became apparent that all was not what it seemed. It would often take months, if not years, to establish what had happened. For a family who has lost somebody or when something has gone badly wrong, that compounds the distress that is caused. It makes things worse. As the noble Lord, Lord Harris of Haringey, said, most people want to know. They just want information; they want to know the truth of what happened to their loved one. The last thing that they want is to find out, sometimes months or years later, that there has been a cover-up or they were given the wrong information. Sometimes, deliberately, the shutters simply come down because a trust fears litigation, as we have heard. Because of that fear, parents, patients and families are often left floundering in the dark and running to lawyers.

None of us can imagine losing a loved one as the result of an avoidable error and then finding out how the information had been kept from one. As has been said, there is no statutory requirement. It would come as a surprise and a shock to most of the general public that there is simply no requirement to be told when something goes wrong with any of our loved ones. The onus would be on them to find out and get to the bottom of it. Most patient groups that are campaigning for this are coming at it from real experience of having to take up some of the most tragic cases that we have heard about in recent years. The phrase “having regard to” the principle of openness is in the NHS constitution, but it is really not sufficient. It is not adequate to deal with the sort of cases that we have heard about.

Successive Governments have usually agreed that a duty of candour is a good thing and may be required, but so far there has been a failure to establish what that duty should entail. It is different from the contractual duty built into standard contracts between commissioners and some providers of NHS services. I believe that this is wrong; surely, honesty is the only policy in this instance. This should be a commitment to the protection of patients in healthcare and a legal duty of candour, which places a duty on all healthcare professionals to be open and frank with patients and their families. I was disappointed to read just last week that the GPC said that GPs would not back an openness clause in the GP contract, for example. I found that very disappointing.

--- Later in debate ---

[Lord Lucas]

My Lords, an apology is not, of itself, an admission of liability. I am very grateful to the noble Baroness, Lady Masham, for allowing me to put that into English law, if I can update the noble Lord, Lord Marks, on it.

I come at this question from a slightly different angle. My familiarity is with doctors who have blown the whistle and had their careers destroyed as a result. That, too, has its roots in a lack of internal candour. I want to see the health service become more constructively self-critical, and for the mistakes and wrong judgments that have been made to be the subject of ordinary conversations within a hospital or other medical organisations, so that better care is provided in the future. This is the way it is in schools. Teachers are generally pretty open about things that have gone wrong and look to find ways of doing things better, but they do not tell parents about it. You can look at schools that have improved from 20 per cent to 80 per cent of students achieving five GCSE grades of between A and C. The kids are the same and the intake is the same. That school has failed thousands of children but no one has ever admitted that to the parents, which is very hard to do. In fact, it would tend to freeze any kind of internal self-critical attitude, particularly if the duty was drawn as widely as it would be in this amendment.

I therefore find myself siding with the noble Lord, Lord Winston, in this, although I am very committed to candour. Candour needs to be there, particularly in something as dangerous as medicine, where you are skiing down the edge of a precipice for half the time. You cannot be blamed when things go wrong because mistakes are bound to happen under those circumstances. Downhill skiers crash; they do not intend to do that and are well trained not to—but it happens. This spreading of blame for every slight mistake or wrong judgment taken in the circumstances of surgery or something with a longer timescale, such as pharmacology, is not the right way to approach the issue. We need to find ways of being open and of encouraging professionals, in particular, to be open with each other in a culture of self-improvement. To expose all this to litigation and in effect to encourage patients to go to law whenever something goes wrong, under circumstances where it is inevitable that a large number of things will go wrong, would be a mistake.

[Lord Harris of Haringey]

The experience within the NHS is that people go to law only because they feel that that is the only way in which they are going to get some clarity into what has actually happened.

[Lord Winston]

That is not so.

[Lord Harris of Haringey]

I am sorry; I hear someone behind me saying that that is not so. My experience in my 12 years of leading the national consumer organisation representing patients in the NHS was that that was precisely the circumstance in which many people went to law. They went to law because they wanted to get the information. That was the fact, and I suspect that that is the reality.

[Baroness Williams of Crosby]

Perhaps I may add a few words on an aspect that was touched upon only a moment or two ago by the noble Lord, Lord Lucas—the role of people who act as whistleblowers, particularly regarding patients who, for one reason or another, are not capable of standing up for themselves, are perhaps in institutions where they get little attention paid to them, and are not much listened to. They would be heavily dependent on the willingness of NHS staff to blow the whistle when bad standards are being allowed to continue.

One thing has always worried me about the NHS. As a parliamentarian of many years’ standing, I have received many letters from junior members of NHS staff asking me to look into some aspect of a hospital or care home in which they work, and almost invariably saying at some point in the letter, “I dare not do this myself because my job would be at risk”. This is a very serious aspect of the amendment of the noble Baroness, Lady Masham, but we have not talked about it very much at all.

I tend to favour the idea proposed by my noble friend Lord Mawhinney for having an element of mediation, as well as an element of court behaviour, in the way in which we deal with such cases. However, it rests on us all to give high priority to thinking of the ways in which we can protect whistleblowers and distinguish the genuine whistleblowers from those who are complaining merely about their personal position. For example, if we included private as well as NHS hospitals and care homes, the kind of position that the noble Baroness, Lady Oppenheim-Barnes, talked about—she described a terrible case with regard to her daughter—would not arise so readily.

I ask the Minister to say something about the view that mediation is one way forward, as well as court cases. At least as importantly, perhaps he can say whether the General Medical Council or others would now seriously consider protection for whistleblowers within NHS staff, who are often the most effective inspectors that we can find—much more effective than people with no clear knowledge of the way in which medical and health services work.

--- Later in debate ---

[Earl Howe]

I agree with the noble Lord. In fact, the GMC sets out in its Good Medical Practice the following:

“If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects”.

Therefore, the noble Lord is quite right: this would apply whether a doctor was treating an NHS patient or serving in a private capacity.

The noble Baroness, Lady Hollins, asked—

[Lord Harris of Haringey]

I am grateful to the noble Earl for giving way yet again on this perhaps longer than expected debate. Although we have clarity about the duty placed by the General Medical Council on individual doctors, which is obviously helpful, the noble Earl gave us an example from the United States where in essence it is not that doctors conspire to keep material from the patients but that the management of the institution finds different ways to get round the duty to report an incident. The reason for saying that a very clear duty needs to be placed on them is management cover-up, which so often takes place when things go wrong.

[Earl Howe]

That is exactly why I referred to the need for a culture of openness rather than encouraging a situation in which we simply try to catch people out when they are not open. The amendment tabled by the noble Baroness looks to me like yet another way for people to get into trouble, rather than a way in which an organisation can take ownership of things that go wrong, encourage openness and look in-house to put things right. That is my fear about the amendment.

The noble Baroness, Lady Hollins, asked whether the consultation that we are undertaking covers whistleblowing. No, the consultation is focused on the duty of candour; whistleblowing is a separate, but linked, issue. Since coming to office, we have, as she may know, taken a number of important steps to promote it in NHS settings.

The noble Baroness, Lady Morgan, asked about the timing of the consultation response. She is right to say that the consultation finishes on 2 January. The government response will follow in due time after that. Unfortunately, I cannot be more specific. I shall be happy to write all noble Lords upon publication of the government response and I encourage noble Lords to take part in the consultation before it closes.

My noble friends Lord Mawhinney and Lady Williams referred to mediation. I take their point. They will know that mediation can mean a number of different things. As part of the proposed contractual requirement, we suggest that providers will have to offer an apology and an explanation and provide further information as appropriate, all in person with the patient, their representative, the relevant clinicians and other hospital or trust representatives as appropriate. That might well involve a mediator. I am all for mediation if legal fees and all the expense and heartache that goes with them can be avoided.